View Full Version : Can I get a Waiver?


Angel212
08-26-2007, 11:20 AM
Can anyone help me with information regarding a 212 (c) waiver? I was convcited of two felonies for drug possesion in 1989. I have been in the country since 1964. Since my release 16 years ago I have not been in any kind of trouble, not even a traffic violation. Ihave also become an author (four publishings to date. I pay taxes, etc. Problem is that my job requires me to travel extensively, doing lectures and talks anbd so on.I have traveled out of the country without any problems, but I know its only a matter of time before I am detained. In addition my children are all American Citizens.My last two children are adopted. Can anyone shed light on this please?
Thank you
Angel

MDawg
08-26-2007, 06:35 PM
What state were the convictions in? What state do you live in now?

What kind of drugs, and what exact amount did you plead to - what H & S or penal code statutes?

Angel212
08-27-2007, 08:05 AM
What state were the convictions in? What state do you live in now?

What kind of drugs, and what exact amount did you plead to - what H & S or penal code statutes?


the first time it was for two bags of dope and the second time it was crack cocaine, I would say about 3 1/2 grams. Both in New York State. I believe both were C felonies.
Thanks for replying MDAWG.
Angel

MDawg
08-28-2007, 01:01 AM
By dope I assume you mean heroin. Where you live NOW is also important. Where do you live?

Well you have a few things going for you. One is that your convictions are not only pre-1996 (AEDPA and IRIRA), but also pre-1990 (Imm. Act).

Being pre-1996 makes you eligible for 212(c). Being pre-1990 makes it so that the new def. of aggravated felony, from IRIRA does not necessarily retroactively apply to you.

Now even today, the first simple possession in some circuits (including the 9th) is not an issue anyway, so no matter what I am not concerned about the first possession. The general rule on 212(c) is that IF you would have been eligible for 212(c) relief at the time you pled guilty, then you should still get it now. First of all, 212(c) is only for plea deals - not jury convictions. But I assume your convictions were from pleas. I believe you would be 212(c) eligible even with two simple possessions since they are that old, IF you were eligible for 212(c) in the first place at the time of the plea. More here:
http://criminalandimmigrationlaw.com/~crimwcom/CILU_792001return212c.php
But the problem is that when you go in for your interview they might just jug you then and there and let the imm. court system sort it out.

I would suggest trying to vacate the two convictions via a writ of error coram nobis. For more on this:
http://www.criminalandimmigrationlaw.com/Free_postcon.php
You will need a skilled attorney to get this done. Probably the best grounds are that you were probably not given a proper immigration advisal back then, but there might be other grounds.

If you are not successful in vacating the convictions, then try the N-400 route and file a G-28 so that an attorney goes into the interview FIRST. Wait outside and try to have him explain the whole thing, and include an opinion letter from an attorney with your naturalization application. If everything is going south, he might be able to convince DHS to at least just give you a notice to appear instead of taking you in, or maybe he can even convince them that you are eligible.

Worst comes to worst, if your attorney comes out and tells you that they are going to take you into custody, you can just take off if you decide not to deal with it. Even if you are taken in, you will be bail eligible and the bail would not be very high for something like this. Your case would wind on for years.

You can review the M-476 Guide to Naturalization yourself as well
http://www.uscis.gov/files/article/M-476.pdf

Angel212
08-28-2007, 10:00 AM
MDAWG, Thank you very much for such a clear and understanble response. I take it you speak LEGALEEZE!
Actually I am living in CT. The occurences happend in NY while I was living there. I have been in CT for 4 years now and I feel that they are more receptive here than in NY.
Thanks again and I will be looking into getting a good lawyer in a few weeks.
Angel

Angel212
08-28-2007, 10:15 AM
MDAWG, Thank you very much for such a clear and understanble response. I take it you speak LEGALEEZE!
Actually I am living in CT. The occurences happend in NY while I was living there. I have been in CT for 4 years now and I feel that they are more receptive here than in NY.
Thanks again and I will be looking into getting a good lawyer in a few weeks.
Angel
Yikes MDAWG, I just spoke to my ex-wife who reminded me that my second conviction was in 1990. The first was in 1988. Does this make it impossible to become a Citizen?
Once again thanks for all your help. You are a godsend. It makes it so much easier to speak to an Lawyer if you have at least a clear picture of what is going on.
Angel

MDawg
08-28-2007, 10:31 AM
The date that matters is if your conviction was prior to November 29, 1990.

But in your case that might not make much of a difference because so long as the convictions are prior to 1996 you are inherently eligible for 212(c) - AGAIN, only if you were eligible AT THE TIME you entered your pleas. Remember that two of the criteria for 212(c) are having been a perm. resident at the time of the plea, and having had 7 years of unrelinquished domicile in the United States prior to the plea. Unrelinquished doesn't mean you never left - just that your trips abroad were just "brief and casual visits."

Connecticut is in the 2nd circuit - same as NY - so there would be no difference as far as federal immigration law is concerned.

MDawg
08-28-2007, 10:43 AM
Just as an aside, the laws and their enforcement have really changed. I know people who were convicted of two or three theft offenses, drug offenses such as you were, all in the 1980s or early 90s, and even when some nasty probation officer REPORTED them to immigration, INS would do absolutely nothing about it. Now, they are detaining anyone with convictions who comes to their attention.

Angel212
08-28-2007, 10:59 AM
Just as an aside, the laws and their enforcement have really changed. I know people who were convicted of two or three theft offenses, drug offenses such as you were, all in the 1980s or early 90s, and even when some nasty probation officer REPORTED them to immigration, INS would do absolutely nothing about it. Now, they are detaining anyone with convictions who comes to their attention.
Scary! I have heard of a few people recently that have won waivers in New York, and most of them had cases worse than mine. Then again I have heard of some that were simple possesion and so forth and the process to detain and remove was very quick and dramatic.
Having adopted two special needs children, it makes it difficult for me to ever consider leaving willingly, at least not without a fight. My depature would cause very great emotional circumstances to them since they both lost their families. Its hard man.
In the 42 years I have been in this country I have been abroad for about 3 months total. As much as I love my Native country I am an American in everyway.
Thanks again

MDawg
08-28-2007, 10:00 PM
I think you'll prevail since you have the time and apparently the resources to fight this. Spend some time on trying to vacate the convictions first, then send in the N-400. Don't delay because if some immigration officer notices the convictions when you fly back into the U.S., he will not listen to explanation and just take you into custody.

Angel212
08-29-2007, 05:01 AM
I think you'll prevail since you have the time and apparently the resources to fight this. Spend some time on trying to vacate the convictions first, then send in the N-400. Don't delay because if some immigration officer notices the convictions when you fly back into the U.S., he will not listen to explanation and just take you into custody.
I believe I will prevail too. I looked over the links you sent me and remembered that in both of my cases I was pulled out of a cab, and the officers were "looking" for a gun but instead found the drugs. I distinctly recall one of my lawyers trying to get the case thrown out because it was an illegal search and seisure, but the judge did not agree.
Immigration nor the consequences of pleading guilty never entered the procedings. Neither the Judge, nor the prosecutor nor my lawyer brought this up.
MDawg, thank you once again for all your help. You have been the most informative person I have corresponded with. Although my resources are limited I will fight this now.
My best to you and all your relations
Angel

MDawg
08-29-2007, 09:54 AM
In coram nobis you cannot bring up issues of law - like the failed motion to suppress - but only issues of fact that if you had known, you would not have pled guilty. Example: ineffective counsel (in some jurisdictions), affirmative misadvisal of immigration consequences, plea was not entered knowingly, intelligently and voluntarily, you did not get the benefit of the plea bargain, failure to advise of immigration consequences, etc.

You do bring up alternate outcomes in the writ, such as "If I hadn't pled guilty, I would have gone to trial because...." and that is where you can bring up the motion saying that you were innocent and that that motion should have been pursued further, and a defense brought up at trial, etc.

What you don't read about coram nobis is that sometimes what is REALLY going on is that a well connected attorney gets the D.A. to just go along with the proposed motion, and the judge signs off. To get that sort of relief, what you have done with your life, the seriousness of the offenses (in this case, if simple possessions, very minor), the dire consequences of getting removed, and so on, really come into play.

What country are you from? That can be a factor too.

Angel212
08-29-2007, 10:34 AM
In coram nobis you cannot bring up issues of law - like the failed motion to suppress - but only issues of fact that if you had known, you would not have pled guilty. Example: ineffective counsel (in some jurisdictions), affirmative misadvisal of immigration consequences, plea was not entered knowingly, intelligently and voluntarily, you did not get the benefit of the plea bargain, failure to advise of immigration consequences, etc.

You do bring up alternate outcomes in the writ, such as "If I hadn't pled guilty, I would have gone to trial because...." and that is where you can bring up the motion saying that you were innocent and that that motion should have been pursued further, and a defense brought up at trial, etc.

What you don't read about coram nobis is that sometimes what is REALLY going on is that a well connected attorney gets the D.A. to just go along with the proposed motion, and the judge signs off. To get that sort of relief, what you have done with your life, the seriousness of the offenses (in this case, if simple possessions, very minor), the dire consequences of getting removed, and so on, really come into play.

What country are you from? That can be a factor too.

I am from the Dominican Republic and I know that means trouble! As for the dire consequences, If I were to get deported, my wife who makes pretty good money would not be able to afford the mortgage on the house, nor live where our children are accustomed to. I have two binders full of every award, lectures, letters of appreciation etc etc that I have received in the past 16 years. In short I can prove without a shadow of a doubt that I have turned my life around. It would be such a travesty to lose all I have worked for over two bags or heroin and 2 1/2 grams of crack. What was I thinking back then...!

MDawg
08-29-2007, 03:01 PM
We all make mistakes. You have obviously turned your life around. DHS (immigration) will not care so much about that, as far as charging you (it will make a difference if they determine that you are eligible for 212(c) in the first place (and I do believe that you are)).

Where it may make the most difference is in trying to get the convictions vacated.

Angel212
08-29-2007, 08:41 PM
We all make mistakes. You have obviously turned your life around. DHS (immigration) will not care so much about that, as far as charging you (it will make a difference if they determine that you are eligible for 212(c) in the first place (and I do believe that you are)).

Where it may make the most difference is in trying to get the convictions vacated.

MDAWG,
What I read in the links you sent me, I understood that If I try to get the convictions vacated the DHS may try to re-convict me?
The irony in all this is that I work in a building where DHS has offices and many of the officers are friends on mine. Go figure, they will be the same ones the send to pick me up LOL I just gotta laugh for fear of going insane with all this.
Angel

MDawg
08-30-2007, 01:34 AM
DHS = immigration. They have nothing to do with the coram nobis process.

Technically, yes, the state D.A. could re-try you on those old drug charges once vacated. Because what a writ of error coram nobis does is "turn the clock back" to the day before you made the plea. The plea is withdrawn, so there is no conviction. But the case technically remains.

But for non-violent, non-serious crimes they would not bother to re-try and besides - 17 year old cases? What chances would they have with witnesses and evidence gone. Most states destroy all evidence related to criminal cases ten years after the conviction, or ten years after the last appeal is exhausted except in the most serious offenses.

In coram nobis I have seen, the D.A. stipulates to the relief, so they agree up front to dismiss the old case nunc pro tunc to the original date of the plea. Translation - it is as if the conviction never happened.


There are a few reasons you don't hear about coram nobis much. One is that it is rarely granted. The other is that it takes some cash to get an attorney to file one, and most criminal defendants don't have it. Another is that most defendants have so much stuff on their record that getting all convictions vacated would take a miracle.

So this sort of relief is available only to a few people - who have but 1 or at most 2 convictions, and who have the means to fight it.

Angel212
08-30-2007, 09:29 AM
DHS = immigration. They have nothing to do with the coram nobis process.

Technically, yes, the state D.A. could re-try you on those old drug charges once vacated. Because what a writ of error coram nobis does is "turn the clock back" to the day before you made the plea. The plea is withdrawn, so there is no conviction. But the case technically remains.

But for non-violent, non-serious crimes they would not bother to re-try and besides - 17 year old cases? What chances would they have with witnesses and evidence gone. Most states destroy all evidence related to criminal cases ten years after the conviction, or ten years after the last appeal is exhausted except in the most serious offenses.

In coram nobis I have seen, the D.A. stipulates to the relief, so they agree up front to dismiss the old case nunc pro tunc to the original date of the plea. Translation - it is as if the conviction never happened.


There are a few reasons you don't hear about coram nobis much. One is that it is rarely granted. The other is that it takes some cash to get an attorney to file one, and most criminal defendants don't have it. Another is that most defendants have so much stuff on their record that getting all convictions vacated would take a miracle.

So this sort of relief is available only to a few people - who have but 1 or at most 2 convictions, and who have the means to fight it.

MDawg,
I just got back from seeing a lawyer. I had to pay them $200.00 for less information than what you gave. Amazing? Further they want $20,000 for the case! I will keep looking for another. In the meantime I will continue to research and study these cases. I wonder how many 212 (c) waivers have been granted since St.Cyr? Also I have read of a few cases that were arguably worse than mine and yet they were granted waivers.
In any event Its not like I have a choice. I am going to fight this. I have grown weary of wondering what will happen.
Thanks again MDawg. It really cool going to a lawyer and having an inkling as to what they are saying (or not) and you have made it very easy for me to undestand what I am facing.
Angel

MDawg
08-30-2007, 11:45 AM
I wouldn't pay an attorney (to take the case) who didn't know what I already said. But - one piece of advice - what I have told you is the WHOLE story, so don't expect any attorney to know MORE than what I already posted.

This guy wanted $20K just for the two writs of error coram nobis? All you need is that for now. They can be filed together and a more likely fee would be anywhere from $3000. - $7000., although I know of people who have paid $10,000. for one writ.

But you have to find an attorney who has done these before. Otherwise the amount of research he will have to do will cost you.

On that link above explaining about the writs is a law firm in CA. Email them and ask if they know a firm who does these writs in CT.

Angel212
08-31-2007, 08:54 PM
I wouldn't pay an attorney (to take the case) who didn't know what I already said. But - one piece of advice - what I have told you is the WHOLE story, so don't expect any attorney to know MORE than what I already posted.

This guy wanted $20K just for the two writs of error coram nobis? All you need is that for now. They can be filed together and a more likely fee would be anywhere from $3000. - $7000., although I know of people who have paid $10,000. for one writ.

But you have to find an attorney who has done these before. Otherwise the amount of research he will have to do will cost you.

On that link above explaining about the writs is a law firm in CA. Email them and ask if they know a firm who does these writs in CT.

Thank you MDawg, you reallly made me feel like I have a chance in this. I will go about this exactly as you suggested. Especiallyb with trying to vacate the felonies. I cant afford to get locked up now since all this effort has to come from my pocket. Cannot imagine a scenario where my wife would have to sell our house in order to try and keep me here without knowing for sure If it will succede or not.
One question, if one gets a waiver then the person is allowed to stay? If so can he then travel outside the country without fear of being denied entry?
Have a great weekend!
Angel

MDawg
09-01-2007, 03:44 AM
A 212 (c) waiver, the same as the new equivalent (Cancellation of Removal), if granted "waives" or "cancels" removal so your status remains. In your case, your status as permanent resident would remain intact.

Angel212
09-01-2007, 07:38 AM
Thank you Mdawg once again. I now have a clearer picture of procedures and options. In essence you have answered all my questions. I do not want to run the risk of asking the same questions in different ways!
I will keep you posted every now and then as to my progress (or lack there of). I am commited to fighting this no matter what. It is better to gon into these situations with full understanding of the law as it stands. You have certainly enlightened me.
Peace
Angel

MDawg
09-01-2007, 11:32 AM
Please do keep us posted! That is the only price we ask for giving you all this information.

Angel212
09-03-2007, 08:58 PM
Please do keep us posted! That is the only price we ask for giving you all this information.

Hello MDawg,
It just occured to me that I have a friend who has co-authored a number of articles with me and happens to be very a good friend of a senator. Once while explaining this ordeal to her, she volunteered to perhaps get me a letter of some sort. Can this help in anyway?
My wheels are turning and im trying to think of any other venues I may have in this matter. Please forgive me if I sound a bit naive.
I have to wait until the end of the month so I may retain a good lawyer. Problem is that I dont like any of the ones I have inquired about.
Thank you
Angel

MDawg
09-04-2007, 12:55 AM
The sort of juice you need to get these writs through is connections to the District Attorney of the county where your convictions were sustained.

Now, if you know someone who will place a call to the right D.A. and ask for a favor on your behalf, yes that can help. If not, that letter you mention can be of some value as your attorney tries to get the D.A. to stipulate to the relief you want.

MandyMeMe
09-04-2007, 08:32 AM
MDawg..i have not been following this post...up until now and i want to personally thank you for helping this guy out..wow...what a wealth of information....you are very valuable here..thank you again.

Angel212
09-05-2007, 08:49 AM
MDawg..i have not been following this post...up until now and i want to personally thank you for helping this guy out..wow...what a wealth of information....you are very valuable here..thank you again.

Yes Mandymeme (another great handle) Mdawg has helped me a great deal. Understanding all the legaleze is not easy, but he has made so that I at least have a clear picture of my options.

Mdawg- My friend and her husband sent out the letter to the Senator yesterday. Even if the letter does not directly help, I figure it can't hurt either. I also have letters of support from Police officers and others.
Not having luck with the lawyers yet however. Will keep trying.
Angel

MDawg
09-06-2007, 01:43 AM
That link above I posted has some suggested questions to ask attorneys to screen them, before hiring. Writs of Error Coram Nobis are not all that common, but some attorneys are familiar with them.

Angel212
09-17-2007, 12:59 PM
Hello MDawg, just wanted to give you an update as to what I have done so far and naturally to ask you yet another question.

One of my students is a law student and is friends with many lawyers at an University in my area. I am going to meet with them this week regarding my case and the possibity of them working "pro-bono". Mind you I did not ask, but they volunteered their services. I told them that I make a descent living, but after calculating all the costs, it will definately set my family back financially. In any event they want to meet me this week.

I have been trying to reach my parole officer who is still working after all these years in the same place. The way I see, he should be able to tell me when my second conviction was, for I have lost all those papers from that period of my life.
I do believe that my second conviction was Feb. 1990 and it was for crack cocaine with intent to sell. I never plead to this. I thought I was pleading to possesion. Since this (to me) sems to indicate that it is an AF, do you think I can still qualify for the Waiver?
Thanks in advance for all your help
Angel

MDawg
09-17-2007, 02:00 PM
You don't need to track your probation officer down. Just contact the New York state department of justice and pay to get your criminal rap sheet. You should do that anyway - whatever is on it, the DHS will see eventually.

When you have the time, you should also dig up the old court files - probably on microfilm now. You will want at a minimum the plea bargain documents, and the sentencing documents. The more work you do, the less your attorney will have to do.

I think pre-1990 the laws didn't matter so much on possession versus possession with intent, but I cannot say for sure. That would require some research to determine. This is a somewhat complex area because one anti-drug law (Anti-Drug Abuse Act of 1988, Pub. L. 100-690) came into effective November 18, 1998, but in general the convictions prior to November 29, 1990, are not AFs unless they are rather serious.

I would suggest also contacting these people
http://www.nysda.org/idp/index.htm

Please post here what they advise you.

Angel212
09-17-2007, 09:50 PM
This is really getting scary! I dont seem to be able to think of nothing else. The friend I spoke of in my last post told me (just as you mentioned) that once I apply for the waiver, they would try to "jug" me, meaning that no matter what I will be re-arrested?
Will contact the people at the link. And of course I will post whatever they advise here.
Thank you
Angel

MDawg
09-18-2007, 11:27 AM
You don't apply for the waiver, what you will do is apply for naturalization (N-400). At that interview they will probably take you into custody UNLESS you have vacated the convictions beforehand and have the paperwork to prove it.

Even then, dealing with some DHS agent at the interview who might not understand what coram nobis is, they might take you to freedomtown (detention) anyway and let the judge sort it out.

BUT...you run the risk of being taken into custody every time you cross the international border right now anyway.

Angel212
09-18-2007, 03:10 PM
My wife just made an appointment with a law firm. I am scheduled to meet with them tomorrow. I also wrote and called the people at the website you suggested but have not heard from them yet.
Got my fingers, waiting.............
Angel

Angel212
09-19-2007, 12:18 PM
I just heard that DHS is re-calling Green Cards with no expiration dates. Guess who has one like this? I dont know when this goes into effect, but this is probably going to speed up my deportation proccess by them. I imagine that once I go for the new card I will be finger-printed and everything will come out.
What is the usual amount they chard for Bail if at all?
Thanks MDawg
Angel

MDawg
09-19-2007, 02:27 PM
Yes that has been proposed - not so much that they are "recalling" the cards, but that they are going to put everyone who has a green card under scrutiny for criminal convictions or any other reasons for removal, by requiring that people with cards issued between 1977 and 1989 re-apply to have them replaced.

This is the proposed rule
http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-16311.htm
not yet in effect, but probably will be eventually. You can write to DHS
rfs.regs@dhs.gov
and use this subject line in your message
DHS Docket No. USCIS-2005-0056
to offer formal objection to the proposed rule!

Also, people who have everything to lose by re-applying, like you, will be better off just not complying:
An alien who fails to file a Form I-90 during this application period will still hold the status of
an alien who has been lawfully admitted for permanent residence, since this status continues until it is terminated by entry of a removal order against the alien. 8 CFR 1.1(p). The alien will not, however, be in compliance with the requirement under section 264(e) of the Act, 8 U.S.C. 1304(e), that the alien must have in his or her possession at all times the evidence of his or her having registered.


Bail - Anyone with a conviction that resulted in being released from custody prior to October 9, 1998, is bail eligible in removal proceedings. Your cases are old, so I would think bond would be $10K or less. But with immigration bonds you have to post fifteen, twenty percent, not just ten like in state criminal cases.

Angel212
09-22-2007, 03:05 PM
Hey there Mdawg,

I have written to the DHS as you suggest in the post above this one and have also asked many friends to do the same. However one friend who is a law student, tells me that this bill is already a done deal. Did it get passed in the past few days?
I didnt take too much stock in what he said, because he also mentioned that I have no chance to win my case etc etc. I refuse to concede until I fight it out so im thinbking he information is faulty.
Have you heard anything?
A

MDawg
09-22-2007, 05:11 PM
The law is proposed, but is not yet final. It will probably pass, although with enough opposition it might be modified in final form. It is not a bill - it is a proposed administrative regulation.

I wouldn't take any stock in that law student if he does not understand that at a minimum, 212(c) inherently applies to your situation.

Angel212
09-25-2007, 07:30 AM
Yes MDawg, I am not putting stock into what my friend told me. Although I can see he is worried for me. I also see that if his first initial reaction is to "freak out" and not do research, then LAW is not for him! :)
As I mentioned to you I gave an appointment with a lawyer tomorrow and will speak to the one you recommneded last week.
I have been researching my second case and found that I was arrested on November 5th, 1990 and did not accept the plea until Feb. 1991. Since I have two cases and having read the link at criminalandimmigrationlaw.com as you suggested, my understanding is that it would be harder to attack both cases. Since the first one was pre-1990 and for such a small amount, I understand that its not as much of a concern. The second one is since it is post Nov. 1990 and they also charged me with Intent to sell. So If I am able to get a Writ of error Coram Nobis in my favor and alter this conviction slighty at worst or vacated at best I should be on good footing.
My new question to you (yes I know its been thousands now, sorry) can the fact that I was not made aware by my counsel, judge or prosecutor that byy accepting this plea or better yet (since the new laws were looming) that since these new laws were coming to fruition help me with the writ? For example if I was advised by counsel or whomever that if I did not take the plea by the 30th of November, the new laws would gravely effect my case in the future I would have done so. But INS, deportations or even my legal status never played into the procedings. The most I got from my lawyer at the time was "you have been in the country too long, there is no way you can be deported"! He also assured me that there was a waiver available upon release. None of this of course was good advice.
After reading thoroughly the link above, especially the "equities" section I see that my case is pretty strong.
For anyone reading or has read this thread I want to say that after interviewing a few lawyers and law students in the past few weeks, MDawg gave it to me straight and real from my very first post. You definately know what you are talking about.
Thanks again
A

MDawg
09-25-2007, 01:20 PM
Two of the usual arguments for coram nobis are "failure to give immigration advisal" and "misadvisal of immigration consequences." The first argument is usually a statutory one - that the court failed to give an advisal, although sometimes it can apply to the attorney.

The second, affirmative MISadvisal is what you are talking about - an attorney telling you "not to worry" when in fact you had plenty to worry about. In general though, the misadvisal has to have been one as of the time of the plea. In other words that the immigration advisal the attorney gave you, as of that moment, was a complete misadvisal.

That's a tough argument to make that the attorney should have known that the laws were changing and so he should have hurried you up on making your plea, because there could have been so many other factors involved on why the delay. For one, maybe he thought you had a good defense and could beat the case. Or maybe the offer they came forward with in November 1990, was much worse than the one offered in February 1991.

On coram nobis, the best is if you make simple arguments: i.e. I was NOT advised of immigration consequences. I was affirmatively MISadvised of the immigration consquences - I was told I could never be deported because I was a long time resident. etc.

You can throw that other stuff in there, i.e. that the attorney should have been aware that the laws were changing and advised you to plea before they did change, but that argument would have to crafted carefully to not contradict the misadvisal. I mean, after all, if the attorney felt that you could never be deported anyway why would anyone expect him to get your plea in before laws changed? I am thinking fast here and just throwing things out - but basically your argument has to be concise and consistent.

A strategic decision you will have to make is whether to attack the two convictions separately or together. The plus to doing together is the court might then agree to vacate one as a sort of compromise. The other plus is that you save time and cost - just one writ, arguments will basically be the same, and you don't have to wait for one to be denied or granted before starting the next one. The minus is that the court will learn all at once that you are a repeat offender and may decide not to give you any break.

If you do attack one at a time, or just one, obviously attack the more recent one which is as well a more serious charge. That first one would not be much of an issue even today, because it was a first time simple possession.
http://www.ilw.com/immigdaily/cases/2006,1206-lopez.pdf
On the second one I think your only hope (as far as coram nobis) is to vacate the plea; I doubt the court will alter it. The situations where pleas are altered and it helps are more like, for example, theft or crimes of violence cases where the judge re-sentences the guy to 364 days instead of a year, to make the offense a non-AF. With drug offenses, I have not heard of situations where the judge, say, changes the plea to possession instead of possession with intent, although anything is possible. Which is why I say that the writ should be directed to vacating not modifying the conviction. And of course on a drug offense the length of sentence is of no consequence. Good luck.

MDawg
09-25-2007, 03:40 PM
By the way, as far as the 212(c) waiver, there may be no differentiation for your type of conviction as far as pre or post November 1990. 212(c) is available for:

1. Plea agreements entered into prior to November 29, 1990 – No limitations

2. Plea agreements entered into on or after November 29, 1990 and before April 24, 1996 – 212(c) relief not available for aggravated felony convictions for which a term of imprisonment of at least five years was served

3. Plea agreements entered into on or after April 24, 1996 and prior to April 1, 1997 – 212(c) relief only available for a single conviction involving moral turpitude, or two crimes involving moral turpitude with the second occurring more than five years after the date of admission.

So even though your second conviction falls in category 2, since you did not do any significant time for it I doubt the date matters. The problem is just that being eligible for 212(c) does not mean you will get it - it is discretionary relief, and looking at someone with TWO convictions, one for what they view as trafficking, will be a tougher sell.

Your attorney may decide to get creative though - if they will waive only one conviction, the 2nd one for example, then just point out that the first one is just a simple possession anyway (see the Lopez v. Gonzales case above) and not an issue.

Another defense angle - how old were you when the first one happened?

KEEP IN MIND as I wrote before - 212(c), and these defenses I outline related to "waiving" the convictions, only come into play in removal proceedings. You cannot, as far as I know, approach the DHS and say, "Hey I want to get 212(c) relief for this stuff on my record sose I can naturalize." There is no "declaratory relief" when it comes to this sort of thing - (filing an action to get something done even before the issue arises).

Rather, first they have to serve you with an NTA or slap the cuffs on you. Then you move to waive everything via 212(c) and the like. Remember that to get 212(c) in the first place you must show unrelinquished domicile of seven consecutive years, at the time of the plea. Once successful with the 212(c), and out of removal proceedings, then you may apply for naturalization.

Angel212
09-25-2007, 10:03 PM
MDawg, my ex-wife found some papers of mine that were still in her house. One of them was a for a bail reduction appeal (?). This was for my second offense. Curiously it says that my second conviction was for a a 220.06 possesion of a controlled substance - Class D felony.
If it were for possesion with intent to sell, and considering that it was crack cocaine, wouldnt that make it an B or even A felony?

To anwser your question above I was 28 years of age at the time. I had only been in touble once before on a gun charge that was dismissed because the accuser was my brother . The gun was not mine it was actually his but he told the police it was mine. When the grand jury heard the case they through it out.

MDawg
09-25-2007, 10:34 PM
I was just asking the age because the old Federal Youth Corrections Act (18 USC 5005) would have given you juvenile status if under 22 at the time of the conviction. Then you could try to argue that the matter would have been given juvenile disposition under federal law, at that time. But doesn't matter - you were over 22, and I just realized that Act was repealed by the time you were convicted. I was just trying to think of possibilities.

The dismissed case is not probative. DHS cannot use cases of arrest only that do not result in convictions against you unless you admit an underlying offense, and who would do that? Nobody I hope.

As I mentioned, you should get the proper forms and take care of the procedure to get a copy of your New York Dept. of Justice criminal rap sheet. This is the same printout DHS will view (if they run it) whenever you enter the country. Also get copies of the court files - the plea agreements and the judgments of conviction. Get certified copies - they cost a few bucks more but as long as you are spending all that time to go all the way over there, might as well have the right docs. Until you have those, we are just speculating on what you might or might not have have pled to.

Angel212
09-26-2007, 05:12 AM
Understood! Thanks MDawg, getting up now and heading to NYC to meet with the lawyer. Will keep you posted.....

Angel212
09-26-2007, 11:32 AM
Hello MDawg,
I just had my meeting with the lawyer. He was very good and basically told me everything you did. I cannot thank you enough for maintaining this site and giving people sincere, honest and factual information.
The lawyer basically said that I have very strong case for the 212 (c)waiver. He was impressed with the level I have achieved since my release, etc etc. In addition he commented on all the positive factors in my case. He said that even if I was not granted the waiver the first time, on appeal it would probably be granted,especially since more time would have elapsed.
Unfortunately he did say this case would be held in CT where I live and he felt that the judges there are more conservative, unlike NY where he has seen many favorable outcomes.
His biggest advice to me was NOT to do anything now. He said to continue doing what I am doing but NO travel.
He also commented that although there is a hostile climate towards immigrants across the country, there were many advocates wanting to change the current laws and felt confident that some of these relief efforts will come to fruition. Also mentioned that even in today's climate some judges are being lenient even with people who have post 1996 convictions.
That said, since the green card laws are about to change I will have to get it renewed eventually and the process. But until then there is no reason to hunt what is not yet hunting me........

MDawg
09-26-2007, 07:06 PM
Not only is there no reason to "awaken the sleeping dogs," but as he must have explained to you, there really is no process to get the waiver until you are in removal proceedings.

NY has always been fairly pro-immigrant. For example they recently thumbed their noses at REAL ID and all that nonsense by declaring the even illegals will receive driver's licenses:

Spitzer Grants Illegal Immigrants Easier Access to Driver’s Licenses
http://www.nytimes.com/2007/09/22/nyregion/22licenses.html?_r=1&oref=slogin
New York State, home to more than 500,000 illegal immigrants, will issue driver’s licenses without regard to immigration status under a policy change announced yesterday by Gov. Eliot Spitzer.

Even though the first level IJs (immigration judges) in CT may be more conservative than those in NY, if you must appeal the second round will be in the identical circuit, the 2nd.

Angel212
09-27-2007, 02:24 PM
MDawg,
A co-worker has just informed me that her father received a letter from Immigration asking him to renew his green card. Did they pass that law/requirement already? If so I may be fighting these guys sooner than I thought.........
Angel

MDawg
09-27-2007, 11:46 PM
I do not believe the regulation has been put into effect yet. Also, who knows whether her father has a green card issued 1977 to 1989.

Angel212
10-10-2007, 07:23 AM
Hi MDawg,
I'd like to share this article I got from the Miami Herald:

IMMIGRATION

Deported ex-convicts fight to return to U.S.

Legal U.S. residents deported after crime convictions are taking Washington to task for violating human rights.

Posted on Tue, Oct. 09, 2007



BY PABLO BACHELET

WASHINGTON --
Hugo Armendariz is a Mexican who grew up in Arizona. Wayne Smith, originally from Trinidad and Tobago, spent most of his life in the Washington area.

Both lived in the United States legally. They became entangled with drugs and landed in jail. They were deported to their birthplaces -- Smith in 1999, and Armendariz in 2005.
Smith and Armendariz have become a cause célèbre of sorts for migrant activists and attorneys who contend U.S. immigration laws have become so harsh that they tear families apart and violate fundamental human rights enshrined in international treaties.
Their case has landed before the Inter-American Commission on Human Rights, or IACHR, a branch of the Organization of American States that made its fame by denouncing the excesses of Latin American military dictatorships in the 1970s and '80s.
Smith and Armendariz ''were given no chance to explain extenuating circumstances, family ties or any other humanitarian considerations,'' said Robert Pauw, a Seattle attorney who represented the duo at an IACHR hearing in July.
State Department lawyer Steven Hill argued at the hearing that they suffered the consequence ''of their life choices'' and that the U.S. government had struck a balance between individuals' entitlement to family life and a state's sovereign right to determine which noncitizen can remain within its borders.
The IACHR's ruling, expected in about a year, will be nonbinding, but Pauw said a favorable judgment could allow his clients to apply to reenter the country -- and provide ammunition to thousands of other legal residents facing deportation for criminal convictions.
Smith and Armendariz are among more than 80,000 migrants -- both legal and illegal -- deported every year for crimes ranging from gambling and homicide, leaving 1.6 million U.S. family members behind, according to New York-based Human Rights Watch.
''Families have been torn apart because of a single, even minor, misstep such as shoplifting or drug possession,'' said Alison Parker, a senior researcher with Human Rights Watch, which this summer issued an 88-page report on the subject.
The problem, immigration advocates say, is the expanding definition of ''aggravated felonies'' -- crimes that put legal migrants on a fast track to detention and deportation.
When the aggravated felony category was created in 1988, Congress initially included crimes like assault and murder. But successive changes added more crimes, and in 1996, lawmakers included lesser offenses such as fraud and minor theft. The law was made retroactive, and judges were barred from issuing family waivers.
ONLY IN AMERICA
In a survey of 61 nations from Albania to Venezuela, Human Rights Watch found that only the United States denies migrants a chance to argue extenuating factors in deportation proceedings.
Rep. Jose Serrano, a New York Democrat, is pushing a bill to restore family waivers in immigration laws. But many U.S. lawmakers are reluctant to support changes perceived as favoring criminals or encouraging foreigners to have U.S.-born babies to avoid deportations.
According to the American Immigration Lawyers Association, or AILA, the problem will get worse under new U.S. programs to run background checks at border checkpoints for people reentering the United States. And the Bush administration's plans to replace 750,000 green cards that now have no expiration dates could trigger more criminal database hits and arrests.
''I don't know what is the right adjective to convey the depth of the problem,'' said AILA President Kathleen Walker, ``but it's tremendous.''
The government does not say how many holders of green cards have been deported after criminal convictions. TRAC Immigration, a Syracuse University group that looks at immigration data, estimates 10,303 individuals faced removal orders in 1992. By 2005, the number jumped to 26,074, bringing the total to 300,000 between 1992 and 2006, affecting citizens from more than 200 nations.
TRAC found that, on average, individuals facing deportations lived in the United States for 15 years.
The attorneys for Armendariz and Smith say U.S. immigration laws violate international treaties, including the 1948 American Declaration of the Rights and Duties of Man, which gives every person the right to a fair trial and ''to a family,'' and children to ``special protection, care and aid.''
''It's not that the courts have closed their doors to them,'' said David Baluarte, an attorney who brought the Smith case before the Organization of American States. ``It's that the judges have been required by Congress to close their ears to them.''
DRAWING THE LINE
The State Department's Hill told the IACHR that the 1996 laws were a ''reasonable exercise of the authority of Congress'' to determine immigration policy. ''Governments engage in line-drawing exercises all the time; they have to,'' he said.
International human rights treaties protect families from abuses by governments like the kidnapping of children, not immigration rules, Hill added. ''I don't think anyone can say that immigration law is designed to break up families,'' he said.
According to Armendariz's brief to the IACHR, he spent 35 years in the United States, including five years in jail for ''possession of cocaine for sale, possession of drug paraphernalia and hindering prosecution.'' He had two previous convictions for drunken driving.
Once out of jail, Armendariz, now 37, ''took steps to prove rehabilitation,'' the brief argued, finding a job and making child-support payments for his U.S.-born daughter, Cassandra. In 2004, he bought a house in Tucson with his fiancée Natalie Porter.
Then, on March 4, 2005, less than one week before he was to wed, Armendariz was arrested and promptly deported to Mexico, with no money and little understanding of Spanish.
Armendariz told The Miami Herald by phone that he has rebuilt his life in Mexico and wants only to visit his relatives in the United States. ''To live, not a chance,'' he said. ``There's nothing for me there.''
Smith's criminal record in Washington reveals more than a dozen mostly drug-related arrests and probations. He served two years in prison in the early 1990s and then married Ann Smith. The two had a U.S.-born daughter.
His attorneys say he started a janitorial company in a Maryland suburb of Washington, attended classes through the University of the District of Columbia and participated in antidrug programs.
''We were making a good life,'' Ann Smith said in a statement read by a relative before the IACHR.
In 1999, Smith was deported to Trinidad and Tobago but returned when he learned his wife's breast cancer was getting worse. He was caught and deported again in 2001. His company folded, and Ann lost her medical coverage. She survived on family handouts as her cancer went into remission.
Now a U.S. citizen, Ann Smith is not giving up.
''Some say that I must move on, but I say my husband is not dead. He is deported,'' she said. ``One day, I pray he will be able to return to the life we were building together.''

Angel212
10-10-2007, 07:23 AM
Hi MDawg,
I'd like to share this article I got from the Miami Herald:

IMMIGRATION

Deported ex-convicts fight to return to U.S.

Legal U.S. residents deported after crime convictions are taking Washington to task for violating human rights.

Posted on Tue, Oct. 09, 2007



BY PABLO BACHELET

WASHINGTON --
Hugo Armendariz is a Mexican who grew up in Arizona. Wayne Smith, originally from Trinidad and Tobago, spent most of his life in the Washington area.

Both lived in the United States legally. They became entangled with drugs and landed in jail. They were deported to their birthplaces -- Smith in 1999, and Armendariz in 2005.
Smith and Armendariz have become a cause célèbre of sorts for migrant activists and attorneys who contend U.S. immigration laws have become so harsh that they tear families apart and violate fundamental human rights enshrined in international treaties.
Their case has landed before the Inter-American Commission on Human Rights, or IACHR, a branch of the Organization of American States that made its fame by denouncing the excesses of Latin American military dictatorships in the 1970s and '80s.
Smith and Armendariz ''were given no chance to explain extenuating circumstances, family ties or any other humanitarian considerations,'' said Robert Pauw, a Seattle attorney who represented the duo at an IACHR hearing in July.
State Department lawyer Steven Hill argued at the hearing that they suffered the consequence ''of their life choices'' and that the U.S. government had struck a balance between individuals' entitlement to family life and a state's sovereign right to determine which noncitizen can remain within its borders.
The IACHR's ruling, expected in about a year, will be nonbinding, but Pauw said a favorable judgment could allow his clients to apply to reenter the country -- and provide ammunition to thousands of other legal residents facing deportation for criminal convictions.
Smith and Armendariz are among more than 80,000 migrants -- both legal and illegal -- deported every year for crimes ranging from gambling and homicide, leaving 1.6 million U.S. family members behind, according to New York-based Human Rights Watch.
''Families have been torn apart because of a single, even minor, misstep such as shoplifting or drug possession,'' said Alison Parker, a senior researcher with Human Rights Watch, which this summer issued an 88-page report on the subject.
The problem, immigration advocates say, is the expanding definition of ''aggravated felonies'' -- crimes that put legal migrants on a fast track to detention and deportation.
When the aggravated felony category was created in 1988, Congress initially included crimes like assault and murder. But successive changes added more crimes, and in 1996, lawmakers included lesser offenses such as fraud and minor theft. The law was made retroactive, and judges were barred from issuing family waivers.
ONLY IN AMERICA
In a survey of 61 nations from Albania to Venezuela, Human Rights Watch found that only the United States denies migrants a chance to argue extenuating factors in deportation proceedings.
Rep. Jose Serrano, a New York Democrat, is pushing a bill to restore family waivers in immigration laws. But many U.S. lawmakers are reluctant to support changes perceived as favoring criminals or encouraging foreigners to have U.S.-born babies to avoid deportations.
According to the American Immigration Lawyers Association, or AILA, the problem will get worse under new U.S. programs to run background checks at border checkpoints for people reentering the United States. And the Bush administration's plans to replace 750,000 green cards that now have no expiration dates could trigger more criminal database hits and arrests.
''I don't know what is the right adjective to convey the depth of the problem,'' said AILA President Kathleen Walker, ``but it's tremendous.''
The government does not say how many holders of green cards have been deported after criminal convictions. TRAC Immigration, a Syracuse University group that looks at immigration data, estimates 10,303 individuals faced removal orders in 1992. By 2005, the number jumped to 26,074, bringing the total to 300,000 between 1992 and 2006, affecting citizens from more than 200 nations.
TRAC found that, on average, individuals facing deportations lived in the United States for 15 years.
The attorneys for Armendariz and Smith say U.S. immigration laws violate international treaties, including the 1948 American Declaration of the Rights and Duties of Man, which gives every person the right to a fair trial and ''to a family,'' and children to ``special protection, care and aid.''
''It's not that the courts have closed their doors to them,'' said David Baluarte, an attorney who brought the Smith case before the Organization of American States. ``It's that the judges have been required by Congress to close their ears to them.''
DRAWING THE LINE
The State Department's Hill told the IACHR that the 1996 laws were a ''reasonable exercise of the authority of Congress'' to determine immigration policy. ''Governments engage in line-drawing exercises all the time; they have to,'' he said.
International human rights treaties protect families from abuses by governments like the kidnapping of children, not immigration rules, Hill added. ''I don't think anyone can say that immigration law is designed to break up families,'' he said.
According to Armendariz's brief to the IACHR, he spent 35 years in the United States, including five years in jail for ''possession of cocaine for sale, possession of drug paraphernalia and hindering prosecution.'' He had two previous convictions for drunken driving.
Once out of jail, Armendariz, now 37, ''took steps to prove rehabilitation,'' the brief argued, finding a job and making child-support payments for his U.S.-born daughter, Cassandra. In 2004, he bought a house in Tucson with his fiancée Natalie Porter.
Then, on March 4, 2005, less than one week before he was to wed, Armendariz was arrested and promptly deported to Mexico, with no money and little understanding of Spanish.
Armendariz told The Miami Herald by phone that he has rebuilt his life in Mexico and wants only to visit his relatives in the United States. ''To live, not a chance,'' he said. ``There's nothing for me there.''
Smith's criminal record in Washington reveals more than a dozen mostly drug-related arrests and probations. He served two years in prison in the early 1990s and then married Ann Smith. The two had a U.S.-born daughter.
His attorneys say he started a janitorial company in a Maryland suburb of Washington, attended classes through the University of the District of Columbia and participated in antidrug programs.
''We were making a good life,'' Ann Smith said in a statement read by a relative before the IACHR.
In 1999, Smith was deported to Trinidad and Tobago but returned when he learned his wife's breast cancer was getting worse. He was caught and deported again in 2001. His company folded, and Ann lost her medical coverage. She survived on family handouts as her cancer went into remission.
Now a U.S. citizen, Ann Smith is not giving up.
''Some say that I must move on, but I say my husband is not dead. He is deported,'' she said. ``One day, I pray he will be able to return to the life we were building together.''

MDawg
10-10-2007, 06:06 PM
Next time please just give us the link, and selected portions and your take on them. But, you are using the old noggin, and thinking!

Angel212
10-10-2007, 09:03 PM
sorry Mdawg, but I tried just putting the link but I couldn't do it.
Got nuthin but nogging left!!

MandyMeMe
10-11-2007, 04:17 PM
Great article...is there hope for people who have been deported?

MDawg
10-11-2007, 04:21 PM
Currently, no
8 CFR §1003.23(b)(1), precludes a person who is “the subject of” proceedings from filing a motion to reopen after departing the U.S. Which means that once removed with a lifetime ban, that is it.

MDawg
10-14-2007, 03:01 PM
State v. Hadad

A non-citizen placed in immigration removal proceedings when trying to reenter the county, due to a 1981 simple possession:
http://www.miami-criminal-lawyer.net/caselaw/2007/01/30/state-v-haddad/

The case goes into more - how he had his conviction vacated and the state is now appealing that, but this is a warning to you - that even a very old (in his case, from 1981) simple possession can throw you into detention.

Angel212
10-15-2007, 06:08 AM
I imagine that I will end up in detention eventually. Although I dont plan to travel now nor in the near future, I cant live this way forever.
That said, the lawyer I contacted told me that I would most likely recieve bail.
The article I posted basically tells me that there are people out there fighting this insanity and its just a matter of time before some of the laws change or at the very least are relaxed.
What I find disturbing is that receiving a waiver or even a postive ruling in an filing a Writ of Error Coram Nobis is that it all depends on how a particular judge feels at the moment. A childhood friend recently told me that he received a waiver (he was in removal procedings).Thing is this is a man I WOULD DEPORT, not a nice guy after all and his record is extensive. Yet he gets a waiver and this poor fellow in Florida faces deportation for simple possesion.
Even if I qualify for the waiver I still have to hope and pray that the judge is the "right" judge!
AAARRRRRRRRRRRRRRGGGGGGGGGGGGHHHHHHHHHHHHH this is so frustrating!
Thanks MDawg!
Angel

Angel212
10-18-2007, 07:06 AM
Hi MDawg,
Could you send me the link of the bill that you stated was "dead on the floor" regarding waivers (?) for long time permanent residents?
My friend who wrote to the senator on my behalf says that last time it did not pass by four votes. I am wondering if its the same bill.
Thank you
Angel

MDawg
10-18-2007, 12:19 PM
That is highly doubtful - any bill favoring benefits for criminal aliens (what they call them) has never even gotten to the voting stage.

Search this site - the various bills are here. For example
http://www.prisontalk.com/forums/showthread.php?t=198082

Angel212
10-18-2007, 01:32 PM
I understand, she was probably misinformed, but although this bill is dead, I presume that some group advocating for cancellation of removal for lPR's must be trying to revive itl. Do you suppose that is dead and with hope no of ever being revived?
Either way, its wording is very interesting. Sounds a lot like the 212(c) waiver. The one thing I seem to be finding more and more is that No one in Congress can agree on any single issue. This to be is both good and bad. Leaning towards the worst of course.
Thank you
A

MandyMeMe
10-18-2007, 02:37 PM
And you still want to stay here? I'm sorry i have not kept up with this whole post as it has tons of articles and bills and well you know. But our government is really a mess. I'm kind of glad that i'm leaving the US, can't even walk my daughter to school with out poilce cars everywhere. Our government is out of control.

MDawg
10-18-2007, 02:43 PM
People who came here at a very early age know no other life. I don't blame them for trying everything to stay.

Angel, I wouldn't count on any such bill anytime soon, if ever. When Congress starts talking about legalizing illegals, people are up in arms. Imagine what they would do if Congress started talking about relaxing the rules for criminal aliens. You and I both know that the types of crimes that are viewed as Aggravated Felonies or Particularly Serious are often petty, but the general public doesn't see it that way.

Angel212
10-19-2007, 07:09 AM
Oh no Im not counting on anything.There are too many schools of thought on this issue so nothing will prevail anytime soon.
That said, after the laws changed in 1996 I was sure that there would never be a waiver available. Everything i read in the paper on the subject made that clear and I saw many, many people deported. Then the law sort of changed so that some may seek relief. So ts not entirely hopless.
The lawyer I spoke to (wouldnt accept a retainer until I was actually in removal process) showed me that some of his clients had indeed received waivers, but felt that the judges in the state where I live seemed more conservative. I pointed out (jokingly) that the St Cyr decision was made in CT and thats the Judge I want...:o
Anyhow I have put this all to rest somewhat for now since I am not in any removal procedings at the moment, but I need to be informed and aware of what my options are. my wife and I have seven children between us so leaving the only country I have known all my life is not inconceivable to me. Once depported they actually place you in jail there until someone bails you out! Since I have no family there it will take sometime to get bailed. Considering the many proffesionals, doctors, phd's from my native country who live in the USA and are working in factories, hotels, and parking garages, simply because there is no work back home, I can only imagine that my choices if indeed I ever got deported would be - Sell oranges on the some street corner, cut sugar cane in direct competition with the haitians who work for pennies a day or just join the drug trade( after 17 years clean) again. Now that really sucks.
A

Angel212
11-09-2007, 08:27 AM
Hello Mdawg,
I just read an articlein the newspaper and was surpirsed that this individual who was aressted in 1985 was deported withing days of his recent ICE arrest:

ICE has arrested so many criminal aliens this year that for the first time in United States history it's actually cutting into the backlog of tens of thousands of cases nationwide. Cases like that of Ramiro Fernandez, who thought the law would not come after him. He's been in Washington on a Green Card since 1985 and served his time for dealing heroin.
"I wasn't running," Ramiro said. "I wasn't hiding."
Fernandez was deported within days of his capture last month.

Makes me wonder if Waivers are even being considered with current state of Immigration/Homeland security agendas.
What do you think?
Angel

MandyMeMe
11-09-2007, 08:57 PM
I have not seen Mdawg on here for a quite some time, i even pm'd him, he may be on vacation or really busy. Hope all is well.

Angel212
11-10-2007, 09:11 AM
Thank you Mandy!
I actualkly called my lawyer yesterday who explained this situation I posted. It appperas the man was already scheduled to be deported but never left.This is why he was sent away so quickly.
I hope Mdawg is okay...
Angel

Angel212
01-03-2008, 12:26 PM
Hey Mdawg, its good to hear you are okay. I was getting worried there for a while. You are a great source of information and once you were not available, you could feel it in the air.
Hope you had a Merry Christmas and that you have a prosperous New Year.
Angel

MDawg
01-03-2008, 01:07 PM
Thanks my friend. I was trying to find this thread to see if you had updated!

There was a recent case where someone was taken in even though he had vacated (via coram nobis) past convictions. The ICE officer who took him in told him to basically "save it for the judge."

But his attorney filed a motion to dismiss, based on that there were no past convictions, and attached copies of the vacatur orders, and within three business days the guy was released and his passport and green card returned to him. Without even having to appear before an IJ (immigration judge). So, in certain circumstances, there is some justice.

Don't lose hope. And don't lose sight of the fact that coram nobis is your strongest (though not only) option.

Angel212
01-04-2008, 09:21 AM
Hey there Mdawg,
I have not updated since last we communicated due to my having a tremendous workload at the moment. I was just promoted to a higher position and with that came ever more paperwork!
Honestly I feel a bit pessimistic. Things appear to be getting worse, and when my time comes I dont want to fight to hard (in case I dont get a waiver) just for fear of leaving my family in a financial mess. I spoke to the lawyer a few weeks ago and specifially asked her if she knew anyone that was familiar with Coram Nobis, she said she did not, but she also falied to see how this could help me. Perhaps the case you stated above will set a precedent. In any event, this is truly a nightmare. Man I feel for everyone on this forum.
On a good note, my wife and I were just named people of the week in our town for our work with special needs children and the ecology ( I run an un-official turtle and wildlife rescue). They said we were two outstanding Citizens............geeeeeeeeez if the only knew.
Well back to work, will update as soon as I know something.
A

MDawg
01-04-2008, 12:59 PM
All that stuff you mention will help with getting 212(c) relief on the old cases.

This lady did not understand how coram nobis could help you (ridiculous) or did not think it would be granted (a sober, but perhaps accurate, assessment).

Angel212
01-06-2008, 03:52 PM
True,perhaps she has little faith in it, but I have to reach for whatever I can if it is financially feasible of course. in any case I thank you ONCE again for making me feel hopeful. You have no idea how often I come in this forum just to read your posts. My wife alwyas tells me to "go on-line and ask Mdawg" when she sees I am worried about a certain issue or something!LOL
Will keep you posted....
A

Angel212
01-07-2008, 10:12 AM
http://mshale.com/article.cfm?articleID=1658

MDawg
01-08-2008, 03:40 PM
Yes just yesterday I was talking to someone from DHS and he basically said, as far as the old green non-expiring cards (that actually look blue), "Tell people not to do anything yet."

Angel212
01-14-2008, 02:33 PM
Hey there Mdawg, Hope you are doing great.
I have to tell you, when reading through all the legaleeze and on many posts here on the forum I get a sense that many offenses are automatically deportable, especially drug offenses. But then I read all about the 212 (c) waiver which according to you and the lawyer I have been speaking to, I can qualify for (of course its up to the judge to grant it or not). What I dont understand is that if 212 (c) was re-instated after St. Cyr ( who was in fact held for drug trafficking- then how is it that a drug offense makes one automatically deportable? I was having this conversation with the lawyer the lawyer today and his explanations sounded vague to say the least. Its like "after St. Cyr a Final rule on the availability was reinstated, but a drug offense makes you automatically deportable, especially for drug dealing,. In my case even though I was NOT dealing, they accused me of having an intent to to sell. Which means that if I was deportable for the first offense (simple possesion) then for the second, they will probably not want to hear anything about rehabilitation or whatever.
What do think?
A

MDawg
01-14-2008, 03:39 PM
You are asking several questions. But they boil down to one: will I be okay?

Basically, 212(c) works for any pre-1997 conviction(s) where the time served was 5 years or less. However, it is discretionary. In order to qualify, one must show rehabilitation. True, possession with intent is more serious than simple possession. But in your case you can show overwhelming, long term evidence of rehabilitation to override the more serious crime.

Another factor is whether you are trying to enter the country or simply found to be removable while in the country. Without getting into details, it is a worse situation be be an "arriving alien" than a removable one. Arriving aliens are considered bond ineligible, for example. That's why that guy you refer to who had the old heroin possession was ordered removed - there is also less (or at least different kinds of) relief available to arriving aliens. That's where it gets complicated, but don't worry about that and just DON'T TRAVEL OUTSIDE THE U.S. until this matter is settled.

Angel212
01-15-2008, 12:23 PM
Wow you know me that well already! Truly amazing. Trust me I have no travel plans outside the country at this or any other moment until this is over and done with.
Do you know anything about search and seizure laws? This is totally unrelated to me but I figure youre the man to ask.
Thank you
J

MDawg
01-16-2008, 04:16 PM
You could post that in another forum and PM me, I'll respond.

Angel212
01-25-2008, 02:16 PM
Mdawg,
I was wondering (as usual) it appears that my conviction dates were 1990 and 1991. From what I understand I am technically still eligible for a 212(c) waiver. However from what I read if the case involves drugs, then one is not eligible. Since one of my cases is from 1991 and is considered an AF, doesnt that technically make me ineligible??
Thanks in advance
A

MDawg
01-28-2008, 01:23 PM
212(c) works for drug offenses, but is usually denied for any sort of what immigration views as trafficking.

Back then the definition of AF was different, and for the most part any crime that resulted in a sentence under 5 years was not an AF.

times_up
01-29-2008, 12:13 AM
212(c) works for drug offenses, but is usually denied for any sort of what immigration views as trafficking.

Back then the definition of AF was different, and for the most part any crime that resulted in a sentence under 5 years was not an AF.

so even then, assault with a deadly weapon before 1993 wasn't considered an AF if the sentence was under 5 years?

Angel212
02-11-2008, 11:27 AM
Hello MDawg,
Who do you think will be a better advocate for immigratant rights and most likely to support a bill, any bill, that will grant some sort of relief to immigrants who are to be deported for crimes.
Also if I remember correctly her Hillary Clinton's husband was the one who originally signed the bill denying LPRs waivers. Is this correct.
My family is wondering who to vote for and this is of course very important.
Thank you
A

MDawg
02-11-2008, 12:26 PM
Funny you mention this - I was having this very conversation with a friend Saturday evening.

Bill Clinton did sign into law the immigration bills of 1996 and 1997, that reduced drastically immigrant rights and made almost any kind of offense a removable one. But these were tagged onto the Anti Terrorism and Effective Death Penalty bill, so they were somewhat slipped in under the door mat. It's inconceivable however that Clinton had no idea what he was doing. On the other hand, could he have vetoed a bill that carried that title, and was primarily directed against the Oklahoma City bombings?

Bill did make the following disclaimer when he signed the bill:
http://www.presidency.ucsb.edu/ws/index.php?pid=52713
This bill also makes a number of major, ill-advised changes in our immigration laws having nothing to do with fighting terrorism. These provisions eliminate most remedial relief for long-term legal residents and restrict a key protection for battered spouses and children. The provisions will produce extraordinary administrative burdens on the Immigration and Naturalization Service. The Administration will urge the Congress to correct them in the pending immigration reform legislation.

We were on our way to immigration reform with Senator Ted Kennedy's Immigrant Fairness Restoration Act of 2001
http://www.aclu.org/immigrants/detention/11786leg20010521.html
but then 9/11 threw a major monkey wrench into all immigration reform.

These days from the way Hillary Clinton has been wavering to different interest groups, and the fact that she has been trying to act tough to dispel the general stereotype that women are weak, it seems clear that she will be at least somewhat tough on immigration.

I would bet that Obama will be much fairer when it comes to immigrants' rights. But, will he get anywhere against the backdrop of Homeland Security and all the Republicans in Congress and the tide of anti-immigrant sentiment post 9/11? I don't know.

Angel212
02-19-2008, 10:31 AM
Hey Mdawg, Hope you are doing well. Just wanted to know if there was any news on the Green Card "re-call" as of yet? I have not heard anything in the News.
Thank you
A

MDawg
02-19-2008, 02:55 PM
No news is good news.

Angel212
02-19-2008, 03:20 PM
No news is good news.

Indeed!!!

Angel212
03-17-2008, 11:59 AM
Hey MDawg, its been a while and I just wanted to say hello. Hope everything is going great with you. As for me, just working hard and I just got two more important papers published that have had me on the edge of my seat (almost as much as immigration)!
Take care
A

Angel212
04-11-2008, 08:21 AM
Hi MDawg,
I saw this article :
http://www.villagevoice.com/news/0815,the-long-goodbye,404223,1.html/full (http://www.villagevoice.com/news/0815,the-long-goodbye,404223,1.html/full)

I take it this man is ineligible for a waiver because he served almost 11 years in prison even though this happened in 1994. This article mentions another man that was deported for Marijuana sales/possesion but his sentence was post 1997. I assume that that they had/have little chance because of the circumstances peculiar to these cases?
Angel

MDawg
04-11-2008, 10:00 AM
212(c) is for people who served five years or less. The recent marijuana conviction, it may have been sales (an AF) that did the guy in.

MDawg
04-12-2008, 10:55 AM
Legal Immigrants, Until They Applied for Citizenship
http://www.nytimes.com/2008/04/12/us/12naturalize.html?hp

Angel212
05-01-2008, 01:13 PM
Hello MDawg,
I have been reading some of the posts and I see you got a standing ovation on one of them! Excelllent! You truly deserve it.
Its been a while since I have been on here. I have been keeping my eyes and ears open, but nothing yet. Turned down many job opportunities abroad ( wont chance that anymore).
In your opinion MDawg, are things getting worse, better or is it all stagnant at this point. I feel like nothing is happening in any direction, although here in NY there are many advocacy groups that appear to be gearing up for something. Whatever it is, I hope its good.
Angel

Angel212
05-06-2008, 12:35 PM
Hey there MDawg,
I left you the message above the other day, but I guess my question has been answered : http://www.emediawire.com/releases/2008immigration/5greencard/prweb916434.htm
I take it this Green Card Renewal is in effect and I have 120 to comply. Will I be arrested immediatley following my renewal request or will they send me a NTA. If so what is the usual amount of bail they ask for if any?
Thank you MDawg
Angel

MDawg
05-06-2008, 12:49 PM
Maybe I misread the article above but as far as I know, the rule about Green Cards with no expiration date is still Proposed Only. The article says nothing more than that.

Angel212
05-06-2008, 01:18 PM
I was reading this article rather quickly while my boss was in my office. I see now that this is just a re-hashed article, more like an advertisment for this Law firm. My apologies.......
Angel

Angel212
05-22-2008, 07:53 AM
Hi Mdawg, I was reading in the paper today that a high ranking aide to Brooklyn Councilwoman Letitia James is in federal lock-up awaiting deportation for a 23 year old conviction (1985) of a minor drug charge (pot) and for failing to attend an immigration hearing. It appears he was caught in 2001 after visiting Barbados. Supposedly even Hilary Clinton is backing this man. But ICE officials say they are already processing his removal papers. In your opinion is he being removed because of the pot or for failing to appear at immigration? Considering that he is eligible for a waiver, I think they are being hasty in trying to remove him.
A

MDawg
05-22-2008, 09:53 AM
If I understand your post (I have not researched his situation directly), once he has a final order of removal in place, he has to first reopen that then attempt the 212(c). Which takes time, and creates two obstacles.

Angel212
05-22-2008, 10:29 AM
If I understand your post (I have not researched his situation directly), once he has a final order of removal in place, he has to first reopen that then attempt the 212(c). Which takes time, and creates two obstacles.

The paper does not specify if he had a final order of removal or not, Just that he was arrested after returning from a trip abroad in 2001. Apparently he failed to go to an immigration hearing at that time. I figure that they are putting him though the process because of this more so than for the pot. In effect it appears that he ran from the law. I figure he probably never received his notice to appear in front of the judge since he is an such a public office.
Here in New York there are so many cases like this one. But I have not been able to find one where someone was actually granted a waiver. You read about a certain case in the paper and then you never hear about it again.

MDawg
05-22-2008, 12:00 PM
He cannot be removed unless there is a final order of removal. Since the article says they are getting his travel docs, he must be beyond that point now - so the 2001 hearing, or one some time after, must have been the one where the order was issued. Elementary my Dear Watson. lol

But yes he probably never received the NTA so that would be his defense to reopening the case. Then again...212(c) wasn't quite available throughout 2001, because INS v. St. Cyr, 533 U.S. 289 (2001) just came down in June 25, 2001. And its implications took a bit of time to sort out.

Angel212
05-22-2008, 08:38 PM
Mdawg, You haveto be the smartest if not the most resourcesful man I have everc cyberically (bushism) known!. I read another paper that stated that he never showed up to his original hearing and was ordered removed. He then went on to do all this cool work with the council woman,but he was already ordered removed. So this case is really about him not following up but and not about the smallamount of pot they convicted him on. But I tell you Mdawg these newspapers really twist things around!LOL
in the long run I think that cases like this are bringing a certain really to head: these draconian laws are just too much and truly serve no purpose.
Wow I used the word draconian in a sentence! Never did that before!! LOL
A

MDawg
05-23-2008, 11:47 AM
He'll have to prove that he did not know about the removal order, or court date in order to set it aside. Basically he'll have to prove he was not served with the NTA.

If he does that, he'll have a shot at 212(c) and I would imagine, get it.

Angel212
05-28-2008, 07:03 AM
Mdawg,
Just read in the daily news that the governor of the state has pardoned a "rapper" who was convicted of attempted murder and served 5 years in prison in 1991. Apparently he has been fighting deportation to Britain since then and now has a pardon from the governor in an attempt to avoid deportation.
I can see that this man, having served 5 years is not eligible for a waiver. Will a pardon do anything to help his case? Its interesting how long he has been fighting removal. Is this the norm?
I feel that, although I wouldnt want to see anyone removed, this man, because of his celebrity is getting special consideration, while hundreds of others are being torn from their families with no consideration whatsoever. It is truly shameful.
A

Angel212
06-02-2008, 07:54 AM
Mdawg,
Just read in the daily news that the governor of the state has pardoned a "rapper" who was convicted of attempted murder and served 5 years in prison in 1991. Apparently he has been fighting deportation to Britain since then and now has a pardon from the governor in an attempt to avoid deportation.
I can see that this man, having served 5 years is not eligible for a waiver. Will a pardon do anything to help his case? Its interesting how long he has been fighting removal. Is this the norm?
I feel that, although I wouldnt want to see anyone removed, this man, because of his celebrity is getting special consideration, while hundreds of others are being torn from their families with no consideration whatsoever. It is truly shameful.
A

http://www.newsobserver.com/news/story/1092188.html

MDawg
06-13-2008, 08:57 AM
Pardons are effective for all but drug and sex crimes.
http://www.prisontalk.com/forums/showthread.php?p=2676403#post2676403

Angel212
06-17-2008, 12:07 PM
http://www.newsobserver.com/news/story/1092188.html
I read about this case myself. I found it odd that his convictions in Canada had any effect here. Bad.
I also have two felonies on my record so I imagine a waiver is not 100 percent sure.
Read in the paper today that the US supreme court dealt a blow to the feds in that their Immigration laws are being considered too harsh. Perhaps there maybe light at the end of the tunnel after all.

MDawg
06-18-2008, 02:06 AM
Let's hope there is some light somewhere!

If this is the case you meant, it was a symbolic victory for immigrants, sure:
http://www.chron.com/disp/story.mpl/ap/tx/5839943.html

The court ruled 5-4 Monday that someone who is here illegally may withdraw his voluntarily agreement to depart and continue to try to get approval to remain in the United States.